Goode v. Phila

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

8-12-2008

Goode v. Phila

Precedential or Non-Precedential: Precedential

Docket No. 07-3164

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-3164

W. WILSON GOODE, JR., IN HIS OFFICIAL CAPACITY

AS A MEMBER OF THE

CITY COUNCIL OF THE CITY OF PHILADELPHIA;

JOAN L. KRAJEWSKI, IN HER OFFICIAL CAPACITY AS

A MEMBER OF THE

CITY COUNCIL OF THE CITY OF PHILADELPHIA;

FRANK DICICCO, IN HIS OFFICIAL CAPACITY AS A

A MEMBER OF THE CITY

COUNCIL OF THE CITY OF PHILADELPHIA;

FRANK RIZZO, IN HIS OFFICIAL CAPACITY AS A

MEMBER OF THE CITY COUNCIL OF THE CITY OF

PHILADELPHIA;

JAMES KENNEY, IN HIS OFFICIAL CAPACITY AS A

MEMBER OF THE CITY

COUNCIL OF THE CITY OF PHILADELPHIA;

LYNN MCCONVILLE; NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE,

PHILADELPHIA CHAPTER; MAYFAIR COMMUNITY

DEVELOPMENT CORPORATION; TACONY CIVIC

ASSOCIATION; WEST SHORE NEIGHBORS; SOCIETY

CREATED TO REDUCE URBAN BLIGHT,

Appellants

v.

THE CITY OF PHILADELPHIA;

ROMULO L. DIAZ, IN HIS OFFICIAL CAPACITY AS

CITY SOLICITOR

OF THE CITY OF PHILADELPHIA

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 07-00901)

Honorable John P. Fullam, District Judge

Argued June 10, 2008

BEFORE: AMBRO, CHAGARES,

and GREENBERG, Circuit Judges

(Filed: August 12, 2008)

Charles C. Sweedler (argued)

Levin, Fishbein, Sedran & Berman

510 Walnut Street

Suite 500

Philadelphia, PA 19106-0000

Attorneys for Appellants

Elizabeth S. Campbell

2

Barbara W. Mather (argued)

A. Michael Pratt

T. Joel Zuercher

Pepper Hamilton

3000 Two Logan Square

18th & Arch Streets

Philadelphia, PA 19103-0000

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on appeal from an

order entered in the District Court on June 21, 2007, dismissing

this case with prejudice for lack of standing of each of the

plaintiff-appellants and for failure to state a federal claim on

which the court could grant relief. The case concerns the

legality of a settlement agreement (“Agreement”) which the

Philadelphia City Solicitor (“Solicitor”), acting on behalf of the

City of Philadelphia (“City”), entered into with certain

Philadelphia billboard operators concerning the regulation of

billboards in Philadelphia. Appellants claim that in entering into

the Agreement the Solicitor exceeded his executive authority,

usurped the City Council’s lawmaking powers, and violated

3

Philadelphia zoning ordinances. The District Court dismissed

the action because it concluded that none of the appellants had

standing to pursue the claims. The court further held that “no

federal claims of any sort can be discerned from [appellants’]

complaint.” App. at 105.

Appellants then appealed. The primary issue on this

appeal is whether appellants have standing to bring this action.

For the reasons that we will explain, we hold that the District

Court correctly concluded that appellants do not have standing.

Accordingly, we will affirm its order of June 21, 2007, except

that inasmuch as the District Court by reason of appellants’ want

of standing did not have subject matter jurisdiction, see

Pennsylvania Prison Soc’y v. Cortes, 508 F.3d 156, 158-59 (3d

Cir. 2007), and we do not pass on the merits of the complaint,

we will modify the order to the end that it will be without

prejudice to appellants instituting a similar action in the state

courts.

II. BACKGROUND

This case is an outgrowth of an action that several

Philadelphia billboard operators filed in November 2005 in the

Eastern District of Pennsylvania against the City challenging

certain of its regulations of billboard advertisements. Free

Speech, LLC v. City of Philadelphia, Civ. No. 05-6188 (E.D.

Pa. filed Nov. 29, 2005). The plaintiffs in Free Speech were

three outdoor advertising companies, specifically CBS Outdoor

Inc., Clear Channel Outdoor, Inc., and H.A. Steen Industries,

Inc., as well as Free Speech, LLC, an association which

included other plaintiffs as its members (collectively “Billboard

4

Operators”). In the Free Speech action the Billboard Operators

questioned the legality of the Philadelphia City Council’s June

2005 amendments to the Philadelphia Code’s regulation of

“outdoor advertising signs” within the City. The Billboard

Operators claimed that the new regulations imposed fees and

certain other requirements on “outdoor advertising signs” based

on their content and that the regulations therefore violated the

Billboard Operators’ First Amendment right to free speech.

In August 2006, following long negotiations, the

Solicitor on behalf of the City entered into the Agreement with

the Billboard Operators to resolve the Free Speech action.1 The

Agreement, however, was not a federal consent judgment

reviewed or issued by the Free Speech court and was what the

parties have called a “private” Agreement. The Agreement

provides that:

A Certified Billboard identified and described on

a Certified Inventory shall be deemed to be a

lawful Outdoor Advertising Sign under the

Philadelphia Code, and at all times shall retain

that lawful status, and the City shall issue an

annual ‘License for Individual Outdoor

Advertising Sign’ for each such Certified

Billboard . . . .

App. at 58 (Agreement § V.A.). In addition to providing that

the City would issue licenses for the specified billboards, the

Agreement specifies comprehensive procedures for resolving

1

The Agreement was signed “City of Philadelphia By:

Romulo L. Diaz, Jr. (ID No. 88795) City Solicitor.” App. at 76.

5

any disputes that may arise from its implementation. Thus, the

Agreement provides that:

[U]nder this Consent Agreement, all parties

hereto have agreed to forego their statutory rights

under the Philadelphia Code for recourse to the

administrative agencies and the Courts, and have

agreed to the final determinations of a Special

Master with respect to certain disputes arising

under this Consent Agreement regarding the

lawful status of certain Outdoor Advertising

Signs.

App. at 47-48 (Agreement § I.). In addition, the Agreement

provides that:

All disputes with respect to the regulation of a

Certified Billboard arising under the provisions of

the Philadelphia Code as further specified and

provided by this Agreement, shall be resolved in

the following manner:

1. In the event that a Settling Party or the City

believes there is such a dispute, it shall provide

written notice of such dispute to the other Party.

Within 10 business days after receipt of such

notice, unless another time is mutually agreed

upon, the concerned Parties shall meet and

exchange all documents and other information

and make a good faith effort to resolve the dispute

at that time.

2. In the event that the Parties are unable to

6

resolve the dispute they shall immediately submit

the matter to the Special Master for final and

binding decision.

3. The Special Master shall receive information

from the Parties and conduct all arbitrations in

accordance with the Commercial Arbitration

Rules of the American Arbitration Association, or

pursuant to such procedures as the Special Master

may propose and to which the Parties agree.

App. at 59 (Agreement § V.C.). The Agreement also provides

that:

This Agreement shall be effective and binding on

the Parties, their successors and assigns for the

Effective Period and shall supersede conflicting

provisions of law. This Agreement shall become

effective upon the Effective Date.

App. at 71 (Agreement § IX.B.).

The parties in their briefs do not suggest that the City

Council approved or authorized the Solicitor to enter into the

Agreement and we are satisfied that it did not do so. The

appellees indicate, however, in their brief, without citation to the

record, that:

the Solicitor’s internal evaluation of the merits of

the litigation and consideration of the issues

raised [and] his views and goals for settlement

were made known publicly throughout the

negotiations on multiple occasions, including in

testimony to City Council on the Law

7

Department’s budget in April 2005, and in an

April 2006 meeting with the Mayor and

representatives of community organizations, some

of whom are plaintiffs in this matter.

Appellees’ br. at 4 n.1. 2 Appellants in their reply brief do not

challenge this statement.

On March 6, 2007, appellants filed this action claiming

that the Agreement should not be enforced. Appellants are five

members of the Philadelphia City Council (a numerical minority

of that body), five community organizations, and a Philadelphia

resident. The City Council itself, however, was not a plaintiff

in the action and the Council as a body did not authorize its five

members to bring the case even though they purport to sue in

their official capacities as Council members. In their complaint

appellants advanced five challenges to the Agreement predicated

on their belief that the Agreement is unlawful because of: (1) its

usurpation of their legislative powers in violation of the Fifth

and Fourteenth Amendments; (2) its deprivation of their access

to the courts in violation of the First, Fifth, and Fourteenth

Amendments and its deprivation of their privileges and

2

We have no explanation for the circumstance that the

testimony in April 2005 was before the Council adopted the

amendments to the Philadelphia Code in June 2005 and before

the Billboard operators filed Free Speech. We recognize,

however, that it is possible that the Billboard Operators and the

Solicitor were trying to resolve their differences before the

Council adopted the June 2005 amendments and the Billboard

Operators filed Free Speech.

8

immunities secured by Article IV of the Constitution; (3) its

deprivation of their right to petition the legislature in violation

of the First, Fifth, and Fourteenth Amendments; (4) its violation

of the Pennsylvania Sunshine Act, 65 Pa. Cons. Stat. Ann. §§

701, et seq. (West 2000); and (5) the circumstance that it

provides for zoning by contract. App. 17-19. The defendants,

now the appellees, are the City and the Solicitor in his official

capacity.3 As a matter of convenience we sometimes refer to the

Council members as legislators, ordinances as legislation, and

the Council as the legislature because precedents germane to the

case often involve use of those terms.

The appellees moved to dismiss the complaint. As we

indicated at the outset, in a memorandum entered on June 21,

2007, the District Court granted appellees’ motion and

dismissed the case with prejudice for two reasons. First it held

that no appellant had standing to bring the action. Then it held

that it could not discern a federal claim in the complaint. See

Fed. R. Civ. P. 12(b)(6). Appellants appeal from the District

Court’s order dismissing their action with prejudice.

III. JURISDICTION AND STANDARD OF REVIEW

3

Appellants did not include the Billboard Operators as

defendants but we will not linger on the question of whether

they were necessary or indispensable parties under Fed. R. Civ.

P. 19, as we agree with the District Court that appellants do not

have standing to bring this action and thus the District Court did

not have jurisdiction over this action. See Pennsylvania Prison

Soc’y, 508 F.3d at 158-59.

9

Appellants pled that the District Court had federal

jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4) and

42 U.S.C. § § 1983 and 1988 and supplemental jurisdiction over

their state law claims pursuant to 28 U.S.C. § 1367. We have

jurisdiction on appellants’ appeal pursuant to 28 U.S.C. § 1291.

We exercise plenary review of standing issues, but review the

factual elements underlying the District Court’s determination

of standing on a clear error standard. See Gen. Instrument Corp.

v. Nu-Tek Elec. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir. 1999).

IV. DISCUSSION

Our principal concern on this appeal is to determine

whether any appellant has standing to bring this action. We start

this inquiry by quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 112 S.Ct. 2130 (1992), in which the Supreme Court

described the elements necessary for establishing “the

irreducible constitutional minimum of standing” under Article

III of the Constitution as follows:

First, the plaintiff must have suffered an injury in

fact – an invasion of a legally protected interest

which is (a) concrete and particularized, . . . and

(b) actual or imminent, not conjectural or

hypothetical . . . . Second, there must be a causal

connection between the injury and the conduct

complained of – the injury has to be fairly . . .

trace[able] to the challenged action of the

defendant, and not . . . th[e] result [of] the

independent action of some third party not before

10

the court. Third, it must be likely, as opposed to

merely speculative, that the injury will be

redressed by a favorable decision.

Id. at 560, 112 S.Ct. at 2136 (internal quotation marks and

citations omitted). In determining whether appellants have

standing, we must consider their specific allegations and the

relief which they seek. See City of Los Angeles v. Lyons, 461

U.S. 95, 105-06, 103 S.Ct. 1660, 1667 (1983).

A. Whether the City Council appellants have standing as

legislators

Appellants argue that “[t]he City Solicitor, by signing a

settlement agreement that claims to supersede all contrary

provisions of law, seeks to usurp [the] City Council’s exclusive

power to repeal or amend existing ordinances, and each

individual Council Member’s right to consider and vote on any

such proposed changes.” Appellants’ br. at 10. Indeed, the

complaint correctly alleges that the Agreement provides that it

“shall supersede conflicting provisions of law.” App. at 71.

Appellants characterize the Agreement as an attempt “to evade

[the] City Council’s exclusive power to consider and enact

ordinances.” Appellants’ br. at 11. According to appellants:

If the City Council plaintiffs lack standing here,

then any executive official may ‘supersede’ any

law he or she chooses, simply by inserting the

desired provisions in a private litigation

settlement agreement. As the Free Speech, LLC

11

case demonstrates, government officials would

privately contract to supersede laws that have no

bearing on the ostensible issues in the litigation

they purport to settle. Such sweeping changes

would be enacted through a settlement that, in its

formation and execution, is deliberately hidden

from the cleansing gaze of public or legislative

scrutiny.

Id. at 16. Moreover, appellants argue that the political process

is insufficient to deter the Solicitor’s abuse of his powers

because “[r]efusing standing on this basis would empower the

executive branch to ‘legislate’ as it saw fit, constrained only by

the prospect of a supermajority of the legislature re-enacting

statutes that were already on the books.” Id. at 15. Appellants’

standing argument, however, clearly is overstated, as we are

addressing only appellants’ standing and not the standing of any

other putative plaintiff and are addressing appellants’ standing

only in the District Court and not in a state court if they refile

this case in that forum.

We start our standing inquiry by building on the

proposition that “[l]egislators, like other litigants in federal

court, must satisfy the jurisdictional prerequisites of Article III

standing . . . .” Russell v. DeJongh, 491 F.3d 130, 133 (3d Cir.

2007). In Russell, we discussed the doctrine of standing in the

context of cases where a legislator brings suit against another

government official:

Concerns for separation of powers and the limited

role of the judiciary are at the core of Article III

12

standing doctrine and the requirement that a

plaintiff allege an injury in fact. Those concerns

are particularly acute in legislator standing cases,

and they inform the analysis of whether a

legislator plaintiff has asserted an injury in fact

sufficient to confer standing to sue. . . . The

Supreme Court, this Court, and others have held

that legislators have a legally protected interest in

their right to vote on legislation and other matters

committed to the legislature, which is sometimes

phrased as an interest in maintaining the

effectiveness of their votes. Not every affront to

a legislator’s interest in the effectiveness of his

vote, however, is an injury in fact sufficient to

confer standing to sue.

Id. at 133-34 (internal quotation marks and citations omitted).

In Russell we observed that “[i]n particular, the

authorities appear to hold uniformly that an official’s mere

disobedience or flawed execution of a law for which a legislator

voted . . . is not an injury in fact for standing purposes.” Id. at

134 (citing Chiles v. Thornburgh, 865 F.2d 1197, 1205-06 (11th

Cir. 1989); Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir.)

(en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct.

533 (1979); Daughtrey v. Carter, 584 F.2d 1050, 1057 (D.C. Cir.

1978); Harrington v. Bush, 553 F.2d 190, 203-04, 210, 213-14

(D.C. Cir. 1977); Harrington v. Schlesinger 528 F.2d 455, 459

(4th Cir. 1975)). See also Chenoweth v. Clinton, 181 F.3d 112,

113, 115 (D.C. Cir. 1999) (holding that members of House of

Representatives did not have standing to sue President for

13

issuing an executive order on the basis that it had “denied them

their proper role in the legislative process”); United Presbyterian

Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1381-82 (D.C.

Cir. 1984) (holding that member of House of Representatives

did not have standing to sue President for issuing an executive

order that allegedly exceeded authority that Congress granted

intelligence agencies and violated limitations imposed by

Congress).

We went on in Russell to explain that “[t]he principal

reason for this [limitation of the definition of injury for standing

purposes] is that once a bill has become law, a legislator’s

interest in seeing that the law is followed is no different from a

private citizen’s general interest in proper government.” 491

F.3d at 135. The Court of Appeals for the Eleventh Circuit

stated the principle similarly in Chiles when it held that a

senator did not have standing to sue the defendants for failing to

comply with a statute for which he voted because “[s]uch a

claim of injury . . . is nothing more than a ‘generalized

grievance[] about the conduct of [] government’” and therefore

is insufficient to confer standing. 865 F.2d at 1205 (quoting

Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955 (1968)).

See also Mountain States Legal Found. v. Costle, 630 F.2d 754,

770 (10th Cir. 1980) (“A private litigant, whether he be a

legislator, a citizen or a taxpayer must, in order to have

‘standing’ to sue, demonstrate a personal stake in the outcome,

and demonstrate that he is the proper party to request

adjudication of the particular issue.”).

Appellants cite a number of cases to support their

contention that the City Council members have standing to bring

14

this action. To begin, they rely heavily on Dennis v. Luis, 741

F.2d 628 (3d Cir. 1984), and Silver v. Pataki, 755 N.E.2d 842

(N.Y. 2001), both of which concerned legislators’ standing to

challenge actions by the governors of their jurisdictions. In

Dennis we held that a group of legislators had standing to

challenge the appointment by the Governor of the Virgin Islands

of an “acting” Commissioner of Commerce because the

commissioner’s appointment required the legislature’s advice

and consent pursuant to Section 16(c) of the Virgin Islands

Revised Organic Act of 1954, 48 U.S.C. § 1597(c), and the

Virgin Islands Code, V.I. Code Ann. tit. 3, § 332(b) (1995). 741

F.2d at 631. In Silver the New York Court of Appeals held that

the Speaker of the New York State Assembly had standing to

challenge the Governor’s line-item veto of portions of bills

which the legislature passed. 755 N.E.2d at 847.

Clearly Dennis and Silver are distinguishable from this

case. In Dennis the legislator plaintiffs claimed that the

Governor’s actions infringed on “their unique statutory right to

advise the Governor on executive appointments and to confer

their approval or disapproval in this regard.” 741 F.2d at 631.

In finding that the plaintiffs had standing we emphasized that

“[t]he interest asserted is simply not a ‘generalized interest of all

citizens in constitutional governance . . . .’” Id. (quoting Valley

Forge Christian Coll. v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 483, 102 S.Ct. 752, 764

(1982) (internal quotation marks omitted)). Moreover, we

explained that “[s]ince the right to advise and consent has been

vested only in members of the legislature, and since only

members of the legislature are bringing this action, the

allegation that this right has been usurped . . . [is] sufficiently

15

personal to constitute an injury in fact, thus satisfying the

minimum constitutional requirements of standing.” Id.

In a case of the same genre as Dennis, Silver concerned

an allegedly unlawful veto by the Governor of provisions of bills

that the legislature passed with the plaintiff’s support, leading

the court to describe the legislator plaintiff’s lawsuit as an

attempt “to uphold that legislative victory against a claimed

unconstitutional use of the veto power nullifying his vote.” 755

N.E.2d at 848. Thus, Silver involved an alleged unlawful

interference with the legislative process, not, as here, an

allegedly unlawful interference with the operation of municipal

ordinances which have the force of laws. The Silver court was

concerned that if it refused to review the Governor’s veto the

absence of judicial review “could render a legislator’s vote

meaningless and unnecessarily dilute one’s legislative

responsibilities.” Id. at 846. Thus, even laying to one side the

circumstance that Silver was a case in a state court not limited

by the exacting federal standing requirements, Silver is

distinguishable from this case.

Here, in contrast to Dennis and Silver, the City Council

appellants do not claim that they have been deprived of

meaningful participation in the legislative process, or that they

have been unable to exercise their rights as legislators. Instead,

the allegations in their complaint concern the City’s

enforcement, or rather lack of enforcement, of the local

ordinances that the Council already had enacted and thus this

case involves only generalized complaints about the functioning

of government so that appellants have no different legally

cognizable interest in the subject matter of the action than

16

anyone else in Philadelphia.

We have not overlooked appellants’ contention advanced

during oral argument that the Agreement, by exempting

approximately 90% of the billboards in Philadelphia from the

requirements of otherwise applicable local ordinances, renders

it the functional equivalent of an amendment to or a repeal of

sections of the Philadelphia Code.4 But even if we were to agree

with this disturbing characterization, which we acknowledge is

not without force, there is no dispute that the ordinances which

appellants claim have been amended or repealed constitute

properly enacted legislation. Indeed, appellants seek to enforce

those ordinances as laws with which the Billboard Operators

must comply and appellees do not claim that the Council has

repealed them.

In considering appellants’ standing problem we come

back to the point that we emphasized in Russell that “once a bill

has become law, a legislator’s interest in seeing that the law is

followed is no different from a private citizen’s general interest

in proper government.” 491 F.3d at 135. Appellants allege

facts in the complaint that concern the City’s alleged

“disobedience or flawed execution of” the zoning ordinances for

which City Council members voted, and, as we held in Russell,

legislators lack standing to assert such claims. Id. at 134.

Appellants also refer to Cohen v. Rendell, 684 A.2d 1102

(Pa. Commw. Ct. 1996), and Morris v. Goode, 529 A.2d 50 (Pa.

4

Appellees in their brief confirm the 90% figure.

17

Commw. Ct. 1987), but neither case is helpful in deciding the

present appeal. First, we are concerned, of course, with whether

the City Council appellants, indeed all appellants, satisfy federal

standing requirements, an issue that Cohen and Morris, like

Silver, which concerned standing in state court, could not

address. Second, though in Cohen and Morris the court found

that the City Council member plaintiffs had standing, in those

cases the plaintiffs, unlike appellants here, challenged actions

that affected the voting process by which ordinances are

enacted. See Cohen, 684 A.2d at 1105 (“Because Cohen, as an

elected, voting member of Council, has a legal and direct

interest in ensuring that Council follows the [voting] procedures

set forth by the Charter, we hold that he does possess standing

to bring his case against the City.”); Morris, 529 A.2d at 53

(“[W]e note that the plaintiff-council members, as council

members, have a legal interest, granted by the home rule charter,

in having a quorum present to vote on council resolutions,” and

that “[b]ecause, on preliminary objections, we must assume that

a quorum of council members were not present to ratify the

negotiated contract, the conclusion must be that the plaintiff-

council members are ‘aggrieved’ and have standing to vindicate

their legal interests in this action.”) (emphasis in original).

But in this case the City Council appellants do not seek

to enforce voting procedures by which the Council enacts

ordinances. Instead, they seek to compel the enforcement of

ordinances that the Council has enacted. As we have explained,

however, individual legislators do not have standing to assert

claims based solely on the alleged “disobedience or flawed

18

execution of” enacted legislation. See Russell, 491 F.3d at 134.5

We have not overlooked the allegations of the complaint

that go beyond seeking redress to the City Council appellants on

account of the alleged infringement of their law-making

function. The extra-legislative basis for relief is predicated on

the provisions of the Agreement providing that any disputes

arising from the Agreement are to be resolved through

arbitration between the City and the Billboard Operators before

a Special Master rather than through the usual prescribed

process of being resolved in hearings before the Philadelphia

Zoning Board of Adjustment (“ZBA”). By reason of this

procedure appellants claim to be deprived of the right to

participate in hearings in which they otherwise could participate.

Appellants thus argue that the Agreement “removes the ZBA

and the courts from any proceedings concerning the legality of

the three billboard companies’ existing billboards.” Appellants’

br. at 5. Appellants also argue that the Agreement provides that

“adjudicating the legality of billboards – the most public and

intentionally conspicuous of land uses – is a private matter

between the billboard companies and the law department, to be

5

We are not suggesting that if the City Council appellants

otherwise had standing the fact that the Council as a body did

not authorize this litigation would strip them of standing as that

situation is not before us. In such a situation we might be in

agreement with Silver to the extent that it indicates that “a

controlling bloc of legislators (a number sufficient to enact or

defeat legislation) [is not] a prerequisite to plaintiff’s standing

as a Member of the Assembly.” 755 N.E.2d at 848-49.

19

heard by a private arbitrator with no public participation or

public notice.” Id.

These allegations concerning the elimination of the

normal ZBA procedures for resolution of disputes arising from

the Agreement, like appellants’ arguments based on the City

Council appellants’ legislative function, fail to support the

argument for the City Council appellants having standing. No

differently from the allegations concerning the alleged

noncompliance with the applicable billboard use, size, and

maintenance requirements, this aspect of the complaint fails to

demonstrate how the alleged exception of the particular

billboards covered by the Agreement from the applicable zoning

ordinances is causing appellants injury beyond that suffered by

a private citizen or taxpayer seeking the proper functioning of

the government. Absent particularized injury resulting from the

billboards and their alleged noncompliance with the applicable

ordinances, we fail to see how the inability of the City Council

appellants (and, for that matter, the other appellants) to

participate in disputes concerning those billboards causes them

injury in fact sufficient to confer standing.

For these reasons, we conclude that the City Council

appellants lack standing to assert their claims in their capacity

as legislators. See Lujan, 504 U.S. at 560, 112 S.Ct. at 2136.

B. Whether appellants have standing as taxpayers

Appellants also argue that they have standing as

taxpayers to bring the present action. Though the taxpayer

standing argument primarily includes Lynn McConville, the sole

20

individual appellant in this case, we note that it probably extends

to City Council appellants as they likely are taxpayers. We

question, however, whether appellants’ reliance on the taxpayer

standing argument is only an afterthought, as their complaint

does not allege that any appellant is a taxpayer in Philadelphia

or, for the matter, anywhere else.

In arguing that as taxpayers they have standing to sue,

appellants refer to the Philadelphia Zoning Code, which they

cite for establishing the right for any aggrieved person to appear

before the ZBA. Appellants claim that “[t]his statute confers

individual rights on each plaintiff,” including “City council

members, taxpayers, or community groups composed of

taxpayers.” Appellants’ br. at 20. In making their argument,

appellants mainly rely on Society Created to Reduce Urban

Blight (SCRUB) v. Zoning Board of Adjustment of the City of

Philadelphia, 729 A.2d 117 (Pa. Commw. Ct. 1999), in which

the state court explained that the provision “confer[s] standing

to any ‘taxpayer’ in Philadelphia to challenge a decision of the

Board.” Id. at 121.

In considering appellants’ claim that they have standing

as taxpayers, we reiterate that a party seeking to invoke the

judicial power of the federal courts is subject to the standing

requirements of Article III. See ASARCO Inc. v. Kadish, 490

U.S. 605, 618, 109 S.Ct. 2037, 2046 (1989); see also Cantrell

v. City of Long Beach, 241 F.3d 674, 683 (9th Cir. 2001)

(applying federal standing requirements to taxpayers’ lawsuit

even though California state law permitted standing because

“California’s lenient taxpayer standing requirements do not

relieve the [plaintiffs] of the obligation to establish a direct

21

injury under the more stringent federal requirements for state

and municipal taxpayer standing”). Thus, even if Pennsylvania

state law would have afforded appellants standing if they had

brought this action in state court, we must ensure that they

satisfy the federal requirements for standing as well.6

The complaint alleges that McConville “is a resident of

Philadelphia,” “[o]ne of the billboards implicated in this action,

located at 4800 Woodland Avenue, is directly visible from her

property,” and she “has appeared as an objector at ZBA hearings

6

Despite appellants’ arguments to the contrary, we note that

even if they could establish standing on some other basis to sue

in the Pennsylvania state courts, they might not be able to do so

on the basis of being taxpayers. Section 17.1 of the First Class

City Home Rule Act applicable in Philadelphia grants standing

to “any aggrieved person,” but states that “the term ‘aggrieved

person’ does not include taxpayers of the city that are not

detrimentally harmed by the decision of the zoning hearing

board or other board or commission created to regulate

development.” 53 Pa. Cons. Stat. Ann. § 13131.1 (West Supp.

2006). See also Spahn v. Zoning Bd. of Adjustment, 922 A.2d

24, 28 (Pa. Commw. Ct. 2007) (stating that “the General

Assembly specifically limited the definition of an ‘aggrieved

person’ by excluding taxpayers of the city who are not

‘detrimentally harmed,’” and that Section 17.1 “effectively

eliminated the grant of general taxpayer standing provided in

Section 14-1807(1) of the Code”); Society Created to Reduce

Urban Blight (SCRUB) v. Zoning Bd. of Adjustment of the City

of Phila., 921 A.2d 536, 543 (Pa. Cmmw. Ct. 2007) (same).

22

at which the billboard company operating the billboards . . .

withdrew its appeal of the City’s denial of a zoning permit for

those billboards.” App. at 11. The complaint, however, does

not include allegations adequately explaining how

implementation of the terms of the Agreement injures

McConville. Thus, though the complaint alleges that pursuant

to the Agreement the listed billboards are freed from the use,

size, and maintenance requirements of the zoning ordinances, it

does not explain how these particular exclusions from the

zoning ordinances constitute an injury in fact, i.e., “an invasion

of a legally protected interest which is (a) concrete and

particularized, . . . and (b) actual or imminent, not conjectural or

hypothetical,” with respect to McConville. Lujan, 504 U.S. at

560, 112 S.Ct. at 2136 (internal quotation marks and citations

omitted).

The complaint’s failure to allege that the Agreement and

its implementation injured McConville beyond the generalized

injury that all persons in Philadelphia suffered by reason of it is

critical, for, as we explained in Russell, “[t]he Supreme Court

has ‘consistently held that a plaintiff raising only a generally

available grievance about government – claiming only harm to

his and every citizen’s interest in proper application of the

Constitution and laws, and seeking relief that no more directly

and tangibly benefits him than it does the public at large – does

not state an Article III case or controversy.’” 491 F.3d at 135

(quoting Lujan, 504 U.S. at 573-74, 112 S.Ct. at 2143). Thus,

McConville does not have standing as a taxpayer and for the

same reason the City Council appellants as taxpayers do not

23

have standing.7

In addition to arguing that as taxpayers they are entitled

to appear before the ZBA, appellants argue that “the non-City

Council plaintiffs were deprived of their legal right to petition

City Council concerning the amendments to zoning ordinances

sought via the Settlement Agreement,” referring to Philadelphia

Home Rule Charter § 2-201. Appellants’ br. at 20. Appellants

again characterize the Agreement as new legislation and claim

that “[d]efendants stripped plaintiffs of their right of access to

the courts, to debate and vote on laws, and to comment on

proposed laws, without any notice or opportunity to be heard.”

Id. at 24. But the problem with appellants’ argument is that, as

is true with respect to their contention that they have standing

based on the elimination of ZBA proceedings, they fail to

identify sufficient injury from the alleged noncompliance of the

billboards with the applicable ordinances to give them standing.

Thus, even if we characterized the Agreement as appellants do,

i.e., as legislation, without sufficient allegations concerning the

injury they suffer from the noncompliance of the noncomplying

billboards with the duly enacted ordinances, we do not see how

7

We are not suggesting that taxpayers never have standing to

challenge municipal action. We are holding only that in the

circumstances of this case no appellant has standing as a

taxpayer because no appellant has set forth allegations

explaining how he or she suffered injury by reason of being a

taxpayer. Indeed, as we indicated above, the complaint does not

allege that any appellant, even McConville, is a Philadelphia

taxpayer.

24

their inability to participate in the negotiation of the Agreement

injured them.

Appellants argue that the mere circumstance that their

injury is of a general nature should not lead to a dismissal of

their claims. In this regard they cite Clinton v. City of New

York, 524 U.S. 417, 118 S.Ct. 2091 (1998), which states:

[It is a] self-evident proposition that more than

one party may have standing to challenge a

particular action or inaction. Once it is

determined that a particular plaintiff is harmed by

the defendant, and that the harm will likely be

redressed by a favorable decision, that plaintiff

has standing – regardless of whether there are

others who would also have standing to sue.

Id. at 434-36, 118 S.Ct. at 2101-02. Appellants lack standing,

however, not because the alleged injuries they suffer are widely

felt, but because their injuries are no different in nature from the

general interest in enforcing compliance with the law which the

public shares. See Russell, 491 F.3d at 135.

We note appellants’ argument that “[n]umerous courts

have . . . held that governmental defendants may not settle

litigation by agreeing to terms that exceed their authority or

invade the rights of third parties,” and that they cite to a number

of cases to support that proposition. Appellants’ br. at 26-29

(citing Cleveland County Ass’n for Gov’t by the People v.

Cleveland County Bd. of Comm’rs, 142 F.3d 468, 476 (D.C.

Cir. 1998); Executive Bus. Media, Inc. v. U.S. Dep’t of Defense,

25

3 F.3d 759, 762 (4th Cir. 1993); People Who Care v. Rockford

Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1337 (7th Cir.

1992); Kasper v. Bd. of Election Comm’rs of the City of

Chicago, 814 F.2d 332, 341 (7th Cir. 1987); Dunn v. Carey, 808

F.2d 555, 560 (7th Cir. 1986); United States v. Alex. Brown &

Sons, Inc., 963 F. Supp. 235, 240 (S.D.N.Y. 1997); In re

Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp.

450, 561 (D.N.J. 1997)).

In each of these cases, however, the court either did not

address the issue of standing or found that the plaintiffs had

standing to assert their claims based on circumstances

inapplicable here so that the cases are distinguishable from this

case and are not guides to us here. See Cleveland County Ass’n

for Gov’t by the People, 142 F.3d at 472-73 (holding

unincorporated association of voters within county had standing

to challenge consent degree concerning method for electing

county commissioners because “its members have been denied

the opportunity to vote for a full slate of the elected officials of

their choice” which the court described as members’ “protected

voting rights”); Executive Bus. Media, 3 F.3d at 761 (discussing

challenge brought by company competing for government

contract against settlement agreement between government and

competitor in which competitor was awarded contract); People

Who Care, 961 F.2d at 1336-37 (discussing challenge brought

by unions against consent degree that would undo certain

provisions in applicable collective bargaining agreements);

Kasper, 814 F.2d at 339 (discussing challenge brought by parties

who submitted proposed consent decree to district court for

voter registration procedures after district court declined to enter

proposed consent decree); Dunn, 808 F.2d at 560 (affirming

26

district court’s decision not to join to federal case individuals

who were parties in separate state action challenging federal

consent decree entered as part of federal case); Alex. Brown &

Sons, 963 F. Supp. at 236, 240 (discussing challenge which

intervening parties in related multi-district action brought

against proposed consent decree proposed by the parties in the

case); In re Prudential Ins., 962 F. Supp. at 479, 500 (discussing

challenge by party in action consolidated in MDL case to

proposed settlement agreement).

Appellants also refer to League of Residential

Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052

(9th Cir. 2007). There, the City of Los Angeles entered a

settlement agreement with an Orthodox Jewish congregation

granting the congregation a conditional use permit subject to

numerous restrictive conditions to operate a synagogue in a

residential use zone. Id. at 1053. In an action that neighbors of

the synagogue brought challenging the settlement, the Court of

Appeals for the Ninth Circuit held that the agreement violated

municipal zoning laws and therefore was unenforceable. Id. at

1056-57. In doing so, however, the court of appeals did not

address the question of whether the plaintiffs had standing to

assert their claims. See id. at 1053-55. This omission seems

understandable, as the neighbors surely would be impacted

directly by a large public facility located near them and

accordingly would suffer a particularized injury from the

operation of the facility very different from that of the general

public. In the circumstances we do not consider that case to be

useful in determining whether appellants have standing in the

present action.

27

In addition, appellants argue that Keith v. Volpe, 118

F.3d 1386 (9th Cir. 1997), a case like League of Residential

Advocates from the Court of Appeals of the Ninth Circuit,

should guide our analysis. In Keith an advertising billboard

developer who was not a party in a case leading to entry of a

federal consent decree involving a freeway appealed from the

district court’s entry of a preliminary injunction prohibiting the

issuance of permits that the developer was seeking allegedly in

violation of the consent decree. 118 F.3d at 1388. Although, as

had been true in the proceedings leading to the consent decree,

the developer was not a party in Keith, he nevertheless

participated in the Keith proceedings before the court by

responding to an order to show cause through the filing of a

memorandum and engaging in the oral argument prior to the

court issuing the preliminary injunction. Id. at 1389-90. The

Court of Appeals for the Ninth Circuit concluded that the

developer had standing to appeal because the developer, in

participating in the district court proceedings, did so at the

district court’s request and an injunction enforcing the consent

decree would have been adverse to the developer’s interests.

Thus, the court of appeals regarded the appellant as having been

“haled into this action by the district court over his objections.”

Id. at 1391 & n.7.

Here, in contrast, no one haled appellants into court.

Rather, appellants initiated the present action in the District

Court, which responded by dismissing their case for lack of

standing. Therefore, other than the fact that appellants

participated in the District Court proceedings, there are no

pertinent similarities between appellants in this case and the

developer in Keith with respect to standing issues. Moreover,

28

we cannot allow the fact that appellants filed the complaint and

then participated in the District Court proceedings to establish

standing. To do so would permit individuals to assert claims

that they have no standing to assert, argue that they have

standing, have their claims dismissed, and then establish

standing in the court of appeals based on their participation in

the district court proceedings. Such a process would circumvent

the need for the parties to meet “irreducible constitutional

minimum” requirements to establish standing, Lujan, 504 U.S.

at 560, 112 S.Ct. at 2136. We therefore reject appellants’

argument that Keith applies to this case.

In conclusion, although appellants argue that they have

standing as taxpayers pursuant to state law, they have failed to

allege any facts showing that they satisfy the federal

requirements for standing with respect to the taxpayer

appellants.

C. Whether the community organization plaintiffs have

associational standing

An association in some circumstances may pursue claims

as a representative of its members. But to do so it “must

demonstrate that ‘(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and (c)

neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.’” Pa.

Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d

278, 283 (3d Cir. 2002) (quoting Hunt v. Wash. State Apple

Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441

29

(1977)).

Here, the complaint contains allegations concerning the

circumstances of each of the five community organization

plaintiffs in this case. According to the complaint, each

organization has an office in Philadelphia and either has

participated in zoning disputes or sought to enforce provisions

of applicable law governing outdoor advertising in Philadelphia.

Four of the five organizations are dedicated to improving

aspects of the environment in the City and have members who

live in or own property near billboards that potentially would be

affected by the outcome of this action. The complaint also

alleges that one of these four organizations has “appeared as an

objector at the ZBA proceedings concerning 4800 Woodland

Avenue,” the site of one of the billboards implicated in this case.

App. at 11.

Despite these allegations which we accept on this appeal,

appellants fail to allege facts that demonstrate that the members

of these organizations would have standing in their own right to

bring the present lawsuit. All that we can discern from the

complaint is that the organizations have members that live in or

own property in the City – we know nothing about how the

billboards covered by the Agreement or the billboards’ alleged

noncompliance with the applicable zoning laws injures those

members. Indeed, the complaint merely states that the members

either live in or own property that “would potentially be affected

by the outcome of this action.” Id. That nonspecific statement

is nothing more than a generalized grievance insufficient under

Russell to establish standing. Without specific allegations

showing that the Agreement causes the members of the

30

community organizations injury in fact, appellants have failed

to demonstrate that its members would have standing to pursue

this case in their own right. We therefore conclude that the

community organization appellants lack standing to litigate the

present case. See Pa. Psychiatric Soc’y, 280 F.3d at 283.

V. CONCLUSION

For the foregoing reasons, we conclude that there is no

appellant with standing to bring this action and therefore we do

not pass on the merits of appellants’ claims. Yet we recognize

that although the executive branch of government must be

afforded appropriate deference in the legitimate exercise of its

powers, it might abuse those powers, and recourse to the courts

should be available to deter such conduct. We emphasize,

therefore, that our decision should not be viewed as condoning

the Solicitor’s decision to enter into the Agreement nor as

shielding the Agreement from judicial review in an action

properly brought to challenge it. Rather, we only hold that

appellants do not have standing to challenge the Agreement in

the District Court.

Our reservations concerning what happened here are

magnified by the District Court’s observation that the Billboard

Operators apparently filed Free Speech because of the need for

“a long-overdue review of the somewhat confused status of

outdoor advertising signs in the City.” App. at 104. We cannot

help but think that if the municipal regulations need revisions

the City Council (which exercises the City’s legislative powers)

31

should be the body to make the revisions, even though that

process may be cumbersome, a not uncommon product of the

operation of a democratic government.8 Indeed, the Agreement

goes so far as to provide for a schedule of annual license fees

that when paid will satisfy the license fee requirement of the

Philadelphia Code. Appellees explain that the “new annual

billboard license fee replac[es] a former licensing ordinance

struck down by the state courts more than a decade earlier.”

Appellees’ br. at 7-8. It might be thought that if any function is

legislative in nature, the setting of fees is such a function.

Our concern is in harmony with the court’s observation

in League of Residential Neighborhood Advocates, a case

greatly different from this case on the facts but nonetheless

8

In this respect this case cannot be compared to a case in

which a limited dispute over a particular billboard or perhaps

even a group of billboards is settled. No one would suggest that

a good faith settlement of such a narrow controversy is

improper. Quite to the contrary, settlement of litigation is a

favored process. See Wilcher v. City of Wilmington, 139 F.3d

366, 372 (3d Cir. 1998). Here, however, as we already have

indicated, the Agreement affects approximately 90% of the

billboards in Philadelphia. Thus, we think that appellees

overstate what they believe is the danger of this litigation when

in their brief they contend that if this case can “go forward, it

could open the floodgates to other disputes, effectively

permitting citizens to challenge the Solicitor’s authority to settle

any lawsuit and to question the terms of each settlement.”

Appellee’s br. at 24.

32

involving land usage, that “[a] settlement agreement cannot

override state law absent a specific determination that federal

law has been or will be violated,” 498 F.3d at 1053, and “[a]

federal court decree or agreement cannot be a means for state

officials to evade state law,” id. at 1055. There is no suggestion

in the record or the parties’ briefs that the Free Speech court

made such a determination with respect to federal law and we

are quite certain that it did not do so.9 Moreover, even if a

particular settlement agreement is not unreasonable, still there

is a risk that the executive branch of government by agreement

might enter into a “sweetheart” deal, whether by offering overly

generous concessions to favored parties or by using litigation as

a pretext for entering into dubious settlement agreements that

serve as a vehicle for transferring money or other benefits to

favored persons, a kind of wide-open corruption. Though we

have no reason to question the integrity of the persons involved

9

The Agreement provides that any party to it can submit it to

the court “for its approval and entry of this Consent Agreement

as a Final Order” but it further provides that, whether or not it

is submitted to the court and whether the court approves it, the

Agreement “shall nonetheless remain a fully binding and

enforceable contractual agreement between the parties.” App.

at 71-72. According to appellants in a statement that appellees

do not dispute, “[n]o party ever submitted the Settlement

Agreement to the court for approval.” Appellants’ br. at 4.

Furthermore the Free Speech docket sheets indicate that the

parties to that litigation terminated the case by filing a notice of

voluntary dismissal they had signed without participation by the

court. App. at 43.

33

in reaching the settlement leading to the Agreement, the fact is

that the corrupt things we describe do occur. See Thompson v.

City of Atlantic City, 921 A.2d 427, 430 (N.J. 2007) (“We now

hold the City’s settlement with its own mayor was so infected

with conflicts of interest that it is void as a matter of state

law.”).10

Finally, we point out that this opinion does not close the

door to future challenges to the Agreement. First, we do not

foreclose the possibility that the City Council itself, as well as

billboard operators not included in the Agreement but who

compete with the ones that are listed, have standing to challenge

the Agreement. Second, we recognize that appellants may have

standing in some capacity to assert their claims in the

Pennsylvania state courts. Indeed, considering that the present

lawsuit concerns a challenge to the Solicitor’s authority to enter

the Agreement in alleged violation of the Philadelphia Home

Rule Charter and the local ordinances, even taking into account

a federal court’s obligation to exercise its jurisdiction when

properly invoked, subject sometimes to a federal court

abstaining from deciding a case or declining to exercise

jurisdiction over state law claims ancillary to its exercise of

federal question jurisdiction, we believe that a state court might

10

In their brief appellees indicate that “[a]s the Settlement

Agreement makes clear, the Solicitor entered into the Settlement

Agreement after careful evaluation, and only after determining

the Settlement Agreement to be in the best interest of the City of

Philadelphia.” Appellees’ br. at 23. We have no reason at all to

doubt that the statement is accurate.

34

well be a more appropriate forum than a federal court for this

case. After all, the state court may have less exacting standing

requirements, the nature of the claims involve significant

questions under state law and procedures and, should the

plaintiffs in that action be successful, the relief available in the

state courts may be more feasible than that possible in the

District Court.11

Notwithstanding the circumstance that we are affirming

the dismissal, we modify the order of dismissal in one respect.

Inasmuch as we are not passing on the merits of any appellants’

claims under either federal or state law, we will modify the order

of dismissal to the end that it will be with prejudice to the

reinstitution of this action in the District Court but will be

without prejudice to institution of a similar action in the state

courts. In this regard we point out that once the District Court

determined that appellants did not have standing, it necessarily

11

Significantly, appellees in their brief contend that the “City,

through the Solicitor, acted under the clear authority granted by

the city’s Home Rule Charter in entering the Settlement

Agreement.” Appellees’ br. at 10-11. Appellants, on the other

hand, asserted in their complaint that the Agreement was

“contract zoning” which the Supreme Court of Pennsylvania has

indicated is illegal. Carlino v. Whitpain Investors, 453 A.2d

1385, 1388 (Pa. 1982). This dispute between the parties over

the scope of the Solicitor’s power under the Home Rule Charter

is precisely the type of issue that, if before us, we might certify

for resolution by the Pennsylvania Supreme Court. See 204 Pa.

Code § 29.451 (2008); 3d Cir. LAR Misc. 110.0.

35

determined that it did not have jurisdiction 12 and thus it could

not decide the merits of the case. See Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012 (1998)

(“Without jurisdiction the court cannot proceed at all in any

cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that

of announcing the fact and dismissing the cause.”) (internal

quotation marks omitted); PSA, LLC v. Gonzales, 461 F. Supp.

2d 351, 359 (E.D. Pa. 2006). As modified herein with respect

to institution of a similar action in a state court, we will affirm

the District Court’s order entered on June 21, 2007, dismissing

this case with prejudice and will remand the case to the District

Court to modify its order of dismissal to conform with this

opinion. The parties will bear their own costs on this appeal.

12

See supra note 3.

36